Middletown Township Cable Television

To regulate the erection, construction, reconstruction, operation, maintenance, and use of a cable television and communications system in, upon, along, across, above, over, under, or in any manner connected with the streets, public ways or public places within the corporate limits of the Township, as they now or in the future may exist.

To provide for the payment of franchise fees to the Township for the construction and operation of cable communications systems.

(3)

To provide remedies for violations of this chapter.

(4)

To provide for the development of cable television as a community communications system and for other public purposes.

§ 81-2 Title; definitions.

This chapter may be cited as the "Middletown Cable Television and Communications Ordinance."

As used herein, the following terms shall have the meanings indicated:

COUNCIL

That Town Council of the Township of Middletown.

CTAC

Cable Television Advisory Committee provided for in § 4-35.

FCC

The Federal Communications Commission.

FRANCHISEE

The person to whom a franchise under this chapter is awarded.

PERSON

The corporation, partnership, principle or other entities that have a legal existence.

TOWNSHIP

The Township of Middletown.

Technical terms.

Cable television. A service whereby television and other telecommunications signals are distributed within a specific geographical area by means of wires or coaxial cables.

Cable television system. The technical facilities and ownership or management thereof for distributing cable television service within a given franchise area.

(3)

Franchise area. For the purposes of this chapter, the Township of Middletown, Delaware County, Pennsylvania.

(4)

Channel. That band of contiguous frequencies within the electromagnetic spectrum assigned to and capable of carrying the signals of a given service. A "television channel" is a band 6 MHz wide, and carries video, audio, and synchronizing and other components of the signal.

(5)

Public access channel. A television channel carried by a cable television system that contains programs or other information supplied by members of the public on a nondiscriminatory basis. The cable television system operator (hereafter "operator") may not charge for use of this channel or channels (although a charge may be made for extensive use of studio facilities utilized for preparation of materials), may not supply programming for these channels himself, and may not exercise any power of censorship except as provided in Section 319 of this chapter.[1]

Editor's Note: Original Section 319, Obscenity and lotteries, was repealed 4-14-2003 by Ord. No. 644.

(6)

Dedicated channel. A television channel carried by a cable television system is restricted to one of the following uses: local government, educational institution, or public access.

(7)

Downstream. The direction of signal flow from a origination to the terminal of a subscriber.

(8)

Upstream. The direction of signal flow from a subscriber, or from a local origination point such as a school, to the cable television system's signal distribution center.

(9)

Subscriber. A resident of Middletown Township who contracts with a cable television system operator for cable television service.

(10)

Drop or service drop. The furthest downstream wiring connecting a subscriber to a cable television system's trunk line.

(11)

Trunk. The main line(s) of a cable television system, from the distribution center to the tap(s) from which subscriber drops are run. The term "trunk" includes all associated amplifiers and other equipment.

(12)

Franchise. An agreement between a cable television system operator and a municipality or similar governmental body defining the rights and obligations of each with respect to a service to be provided the community involved. A cable television franchise is a nonexclusive license granted under terms of an appropriate ordinance.

(13)

Head end. That point which television broadcast signals are received off the air or by microwave and inserted into a cable television system. It is possible for signals to be received at a head end by coaxial cable from a nearby system under common ownership, but most cable television systems use appropriate antennas.

(14)

Distribution center. The location where necessary amplification, signal modification, and switching of signals received from the head end and other origination points, such as studios, is performed. The distribution center may be located at the head end or elsewhere, and has as its main purpose the insertion of the proper signals into the trunks of a cable television system.

(15)

Terminal. All equipment at the subscriber's location located between the service drop and the antenna terminals of the subscriber's television receiver. Additional equipment, such as that needed for two-way use of the cable television system by the subscriber, shall fall within this definition, whether supplied by the cable operator or by the subscriber or by others.

(16)

VHF television. Television broadcast on the Very High Frequency band between 30 and 300 MHz (channels numbered two through 13 by the Federal Communications Commission).

(17)

UHF television. Television broadcast on the Ultra High Frequency band between 300 and 3,000 MHz (channels numbered 14 through 83 by the Federal Communications Commission).

(18)

Interconnection. The physical or microwave connection of the franchisee's cable television system, cable television companies servicing adjoining townships. This includes broadcast capability to provide subscribers with educational and public interest programming originating from adjoining townships, upon request of Township or Rose Tree Media School District.

§ 81-3 Franchise required; duration; nonexclusivity; other business activities.

Council may grant franchises for the construction, operation and maintenance of cable television and communications systems subject to the terms and conditions contained in this chapter.

Any person proposing to commence or engage in the business of construction or operating a cable television and communications system in the Township must first have been awarded, and have duly executed an agreement awarding, a franchise pursuant to this chapter.

[Amended 4-14-2003 by Ord. No. 644]

Any person submitting a proposal to enter into an agreement for the award of a franchise under this chapter shall provide all information required by this chapter and such other information as may be required by Council.

[Amended 4-14-2003 by Ord. No. 644]

Each franchise shall be granted for a term of 10 years or such lesser period of time approved by Council.

[Amended 4-14-2003 by Ord. No. 644]

Franchises granted pursuant to this chapter shall be nonexclusive; by entering into an agreement awarding a franchise under this chapter, the franchisee acknowledges the right of the Township to grant additional franchises upon such terms and conditions as it deems appropriate.

Franchises granted pursuant to this chapter shall not be voluntarily transferred or voluntarily encumbered without the express approval of the Council after a public proceeding afforded due process, unless such approval is not required pursuant to controlling law. For the purpose of this subsection, the transfer of control of the franchisee shall be deemed to be a transfer of the franchise.

[Amended 4-14-2003 by Ord. No. 644[1]]

Editor's Note: This ordinance also repealed former Subsection G, restricting franchisee from selling and repairing electronic equipment, which immediately followed this subsection. This ordinance also renumbered former Subsection H as Subsection G.

Copies of all petitions, applications and communications submitted by the franchisee to the FCC or any other federal or state regulatory commission or agency having jurisdiction in respect to any matters affecting cable television and communications operations authorized pursuant to this chapter shall also be submitted simultaneously to the Township.

§ 81-4 Franchise territory.

Franchises granted pursuant to this chapter shall be for the present territorial limits of the Township and for any area henceforth added thereto during the term of this franchise or renewal thereof.

The franchisee shall offer cable television and communications service to all residents of the Township. To the extent that the franchisee intends to impose additional installation charges for service to any specific area, street, building or other location, the franchisee shall clearly indicate in its proposal to enter in an agreement for the award of a franchise in accordance herewith the technical or economic reason for such additional charges in the enumerated locations. There will be no additional charges without express consent of the Council, and after a public proceeding affording due process.

[Amended 4-14-2003 by Ord. No. 644]

§ 81-5 System construction.

[Amended 4-14-2003 by Ord. No. 644]

All installations shall be underground in those areas of the Township where telephone and electric utilities' facilities are or are required to be underground at the time of the installation of the franchisee's cable television system. In areas where both telephone and electric utilities' facilities are above ground at the time of the installation of the franchisee's cable television and communication system, the franchisee may install its service above ground only upon the condition, which shall be included in any agreement awarding a franchise in accordance herewith, that at such time as those facilities are placed underground by the telephone and electric utility companies or are required to be placed underground by the Township, the franchisee shall likewise place its facilities underground at its sole cost and expense.

The franchisee at his expense shall restore all private property damaged or disturbed during the installation of poles, cables, wires or equipment to a condition at least equal to the kind and quality existing at the start of the work.

All installations of equipment shall be durable, of a permanent nature, and installed in accordance with good engineering practice and shall comply with all existing Township regulations, ordinances, and state laws so as not to unduly interfere with the travel and use of public places by the public during the construction, repair, or removal thereof.

In the construction, conduct, maintenance and operation of its business, the franchisee shall comply with all requirements of the Township ordinances, resolutions, local laws, requirements and specifications heretofore or hereafter enacted or established, including but not limited to those concerning street work, street excavation, use and removal and relocation of property within a street.

The franchisee shall maintain all wires, conduits, cable and other real and personal property and facilities in good condition.

The franchisee shall keep accurate and complete, as-built maps and records of its system and facilities and shall furnish to the Township as soon as they are available, complete copies of such maps and records. Said maps and records shall be available for inspection by the public during normal business hours.

The franchisee shall comply with all federal, state and local codes and ordinances governing the construction, installation, operation, and maintenance of the cable television system.

§ 81-6 Services.

[Amended 4-14-2003 by Ord. No. 644]

The franchisee shall comply with current and future rules and regulations of the federal, state, and local agencies in connection with and relating to the operation of its system.

Remote live telecasting. The franchisee shall provide upstream channel capability for live or taped telecasts from at least:

Penncrest High School.

Township Municipal Building or other public buildings.

Service to community facilities. The franchisee shall provide each accredited college or university, and each public and licensed private or parochial educational institution (elementary or secondary, for educational purposes only), each public library, each fire company and each Township building and such other facilities as the Township and franchisee may mutually agree, with a single service drop and service without charge.

Interconnection.

Subject to applicable third-party agreements, the franchisee shall be required to interconnect its public, education and government access channels with those of any other cable television and communications facility operating in contiguous municipalities or such larger territory as may be feasible, such interconnection to be made within 30 days of a request by the Township. For good cause shown, the franchisee may request and the Township may grant reasonable extension of time to comply with this requirement.

Franchisee will interconnect its cable television system with any and all companies serving the municipalities which comprise the Rose Tree Media School District. Franchisee will broadcast all local origination and educational broadcasts originating from such other townships on franchisee's cable television system, whether produced by franchisee or such other companies serving the municipalities which comprise the Rose Tree Media School District. Franchisee shall make available all local origination educational and public interest programming to any and all cable television companies servicing the municipalities which comprise the Rose Tree Media School District. Franchisee will waive any proprietary interests in live or taped programming so produced.

§ 81-7 System specifications and state-of-the art equipment.

[Amended 4-14-2003 by Ord. No. 644]

All performance and technical standards governing construction, reconstruction, installation, operation, testing, use, maintenance and dismantling of the cable television system provided for herein shall be in accordance with all current applicable FCC and other federal, state, and local laws and regulations; provided, however, that the Township may require higher or different standards unless specifically prevented from doing so by law.

The franchisee shall maintain and operate a cable system covering the Township which utilizes fiber optic receiver nodes located throughout the plant which divide the distribution of cable system signals to subscribers in a manner which provides high-quality programming signals and reliable service. The cable system shall be built for digital television standards with a bandwidth of no less than 750 MHz with addressable technology with no less than 116 video channels received for digital or analog transmission and with sufficient portion of said bandwidth delivering reliable two-way cable services.

In recognition of the fact that the technology of cable systems is an evolving field, the cable system in the Township shall be capable of offering cable services that are as good as or better than other cable systems operating in the Township and as good as or better than other cable systems operating in the counties of Bucks, Chester, Delaware and Montgomery ("comparable systems").

The cable franchise agreements entered into between the Township and franchisees shall contain state-of-the-art provisions requiring franchisees to improve or upgrade their cable systems when the cable services they are offering in the Township are not as good as cable services in comparable systems.

§ 81-8 Rates; change in rate schedule.

[Amended 4-14-2003 by Ord. No. 644]

Each franchisee shall state in its proposal to enter into an agreement for the award of a franchise hereunder its initial monthly rates and installation and all other charges for service.

The franchisee shall give notice of its intention to change monthly rates and installation charges for residential service by mailing notice thereof to each of its current subscribers to whom such charges shall apply in accordance with all FCC requirements.

§ 81-9 Local regulatory framework.

[Amended 1-25-1982 by Ord. No. 303; 4-14-2003 by Ord. No. 644]

The Council shall have power to adopt, prescribe, make, alter and rescind such rules and regulations, procedures and forms, consistent with ordinances of the municipality and laws of the Commonwealth, from time to time, for carrying out its functions and responsibility.[1]

Editor's Note: Original Section 311, Cable Television Advisory Committee; community TV workshops, was moved to § 4-35 at time of adoption of Code (see Ch. 1, General Provisions, Art. II). Original Section 312, Complaints, and Section 313, Cancellations of Service by Subscribers, which immediately followed said section, were repealed 4-14-2003 by Ord. No. 644.

§ 81-10 Franchise fees; financial information.

[Amended 4-14-2003 by Ord. No. 644]

The Franchisee shall pay to the Township a franchise fee based upon an agreed percentage of the franchisee's gross revenues, as negotiated between the parties, in accordance with FCC regulations.

"Gross revenues" shall mean all revenue received directly or indirectly by the franchisee or its affiliated entities from any source whatsoever arising from, attributable to, or in any way derived from the operation of franchisee's cable system in the Township to provide cable services. Gross revenues shall include, but are not limited to, the following: basic service fees; fees charged to subscribers for any optional, per-channel or per-program services; revenue from the provision of any other cable services; charges for installation, additional outlets, relocation, disconnection, reconnection and change-in-service fees for video or audio programming; fees for leasing of channels; rental or sales of any and all equipment, including converters and remote control devices; studio rental, production equipment and personnel fees; any and all advertising revenues; fees charged for use of any equipment, including cable transmission wires, to any other entity; revenues or commissions from home shopping channels; fees for any and all music services, including DMX fees for video-on-demand; sales of program guides; late payment fees; NSF check charges; and franchise fees. Gross revenues shall not include: Internet access or cable modem service fees; installation, relocating, disconnection, reconnection and change-in-service fees for Internet access or cable modem service; bad debts or any taxes on services furnished by franchisee and imposed directly upon any subscriber or user by the municipality, state, federal or other governmental unit.

The Franchisee shall file annually with the Township within 90 days after the expiration of each fiscal year of the franchisee a financial statement certified by an independent certified public accountant in accordance with generally accepted accounting principles. In addition to the normal audit procedures, the auditor shall perform such work as may be necessary to certify that gross revenues as defined above, as may then be applicable, are property stated.

On an annual basis, upon 30 days prior written notice, the Township shall have the right to conduct an independent audit of the franchisee's records reasonably related to the sources, amounts and computation of gross revenues in accordance with generally accepted accounting principles; provided, however, that any such audit shall take place within four years from the date the Township receives such payment, after which period any such payment shall be considered final. Such records shall be kept or made available to the Township at the notice location for franchisee specified in the cable franchise agreement between Township and franchisee. Any reproduction of such records for purposes of inspection shall be performed at franchisee's expense. If the audit shows that franchisee fees have been underpaid, then franchisee shall pay the underpaid amount and liquidated damages of 10% of the underpayment. If franchise fees have been underpaid by 5% or more, then franchisee shall also pay the total cost of the audit.

The franchisee shall also supply to the Township such financial information relating to the franchisee as the Township may, from time to time, reasonably request in writing.[1]

Editor's Note: Original Section 315, Renewal of franchise, which immediately followed this section, was repealed 4-14-2003 by Ord. No. 644.

§ 81-11 Cancellation of franchise.

[Amended 4-14-2003 by Ord. No. 644]

In addition to all of the rights and powers accruing to the Township under this chapter or otherwise, Council reserves the right to terminate and cancel the franchise in accordance with applicable law.

§ 81-12 Rights of Township upon termination or cancellation or proposed transfer.

[Amended 4-14-2003 by Ord. No. 644]

At the expiration of the term for which this franchise is granted, or upon its termination and cancellation as provided for herein, the Township shall have the right to require the franchisee to remove at its own expense all portions of the system from the Township.

§ 81-13 Indemnity.

[Amended 4-14-2003 by Ord. No. 644]

Franchisee shall, at its sole cost and expense, indemnify and hold the Township, its elected and appointed officials, its officers, employees and agents, acting in their official capacities, harmless at all times during the term of the franchise agreement from and against any and all liability, losses or damages, including attorneys' fees and costs of defense, the Township may suffer as a result of claims, demands, suits, actions or proceedings or any kind or nature arising out of the construction, upgrade, installation, removal, operation or maintenance of all or part of its cable system, including the actions of any contractor or subcontractors acting within the scope of its engagement. Upon timely receipt of notice in writing from the Township of the Township's receipt of a claim or action pursuant to this section, franchisee shall, at its own expense, defend any action or proceeding against the Township in which it is claimed that any injury or property damage was caused by the activities of franchisee, its officers, employees and/or agents, in the construction, upgrade, installation, removal, operation or maintenance of its cable system.

§ 81-14 Insurance.

[Amended 4-14-2003 by Ord. No. 644]

Franchisee shall maintain insurance through the term of this agreement with the Township as an additional insured, with an insurance company which is authorized to conduct business in Pennsylvania and which has an A.M. Best rating (or equivalent) no less than "A", indemnifying the Township from and against any and all claims for injury or damages to persons or property, both real and personal, caused by the construction, installation, reconstruction, operation, maintenance or removal of the cable system by franchisee or any of its contractors, subcontractors, agents or employees in the following amounts:

The amount of such insurance against liability for damage to property shall be no less than $1,000,000 as to any one occurrence.

The amount of such insurance against liability for injury or death to any person shall be no less than $1,000,000.

(3)

The amount of such insurance for excess liability shall be $5,000,000 in umbrella form.

(4)

Franchisee shall maintain workers' compensation insurance on all employees engaged in its installation or service of its equipment.

All insurance coverage shall be maintained throughout the period of the agreement. All insurance policies shall contain a provision that the Township will receive 30 days' written notice prior to any changes or cancellation of the policy. All expenses incurred for said insurance shall be at the sole expense of franchisee.

A certificate evidencing the insurance coverage required herein shall be provided by franchisee to the Township upon request.[1]